Do Living Trusts Prevent Will Contests?

Living trust promoters often say that living trusts prevent will contests.

There is some truth to what they say, but it's not quite that simple.

First, despite the horror stories you hear, the truth is that will contests are quite rare.

So,
unless your family is particularly contentious (or the distribution of
your estate will be controversial) this is probably not a significant
issue for you.

But it might be helpful to you to know that:

A living trust is not a "will" and thus technically cannot be part of a "will contest."

However, living trusts (like any other trust) can be challenged on the
basis of fraud, undue influence, or lack of capacity. These are the
same grounds that wills are most often contested (if they are contested
at all).

So, it's certainly not true that a living trust cannot be contested.

On the other hand, a living trust can reduce the chance of a dispute over the distribution of your estate.

The
reason is that a living trust is more private than a will. Because the
terms of a living trust are not generally available to the public (as
they are with a will), it is less likely someone will contest the trust.

That’s just common sense.

Your relative is more likely to be upset, and challenge a will, when
he knows he's getting less than someone else. If he's not exactly sure
who's getting what, he'll be less likely to challenge the distribution
of your estate, and certainly it will be more difficult for him to find a
basis to sue over it.

The same thing goes for a creditor of
the deceased or a creditor of a beneficiary. Particularly in today’s
litigious society, privacy is an important factor in avoiding
litigation.

The bottom line is that while a living trust
cannot guarantee your estate distribution will not be challenged, it can
lessen the likelihood of challenge. So, there is a nugget of truth to
the statement that: "living trusts prevent will contests."

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